State of Tennessee v. Jerome Maurice Teats

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 17, 2013 Session

STATE OF TENNESSEE v. JEROME MAURICE TEATS

Appeal from the Criminal Court for Davidson County

No. 2009-D-2955 Steve Dozier, Judge

No. M2012-01232-CCA-R3-CD - Filed January 10, 2014

Jerome Maurice Teats (“the Defendant”) was convicted by a jury of one count of aggravated

robbery and four counts of especially aggravated kidnapping. The trial court subsequently

imposed an effective sentence of fifty years’ incarceration. In this direct appeal, the

Defendant raises the following issues: (1) the trial court erred in denying his motion to

suppress; (2) the trial court erred in denying his motion to disqualify the district attorney

general’s office; (3) his convictions for especially aggravated kidnapping must be reversed

on due process and double jeopardy grounds; (4) the trial court improperly instructed the jury

on criminal responsibility; (5) the evidence was not sufficient to support his convictions; (6)

cumulative error; and (7) his sentence is excessive. Upon our thorough review of the record

and applicable law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments

of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN, J., joined.

J OSEPH M. T IPTON, P.J., filed a dissenting opinion.

Patrick T. McNally (on appeal and at trial) and James Todd (at trial), Nashville, Tennessee,

for the appellant, Jerome Maurice Teats.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Rachel Sobrero and Pamela

Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The Defendant was indicted with his codefendant, Tirrone Akillia Simpkins, in

October 2009 for one count of aggravated robbery and four counts of especially aggravated

kidnapping, all arising out of May 2009 offenses committed at a Shoney’s restaurant. The

Defendant was tried before a jury in November 2011,1 during which the following proof was

adduced:

Jack Liev testified that, early on the morning of May 18, 2009, he arrived at the

Shoney’s restaurant near the intersection of Highway 70S and Interstate 40 in Bellevue,

Davidson County, Tennessee. As he walked in the entrance, he was “met by the manager

who was fairly frantic and explained that he’d just been robbed.” The manager requested

that Liev call the police. The manager and Liev walked into the parking lot and, as Liev

called 911, the manager pointed out an individual walking down the street as one of the

perpetrators. As Liev spoke with the 911 dispatcher, he got into his truck and drove toward

the road in an effort to keep the individual in sight. Liev recalled that the person was

wearing a black hoodie.

Liev crossed the road and pulled into a parking lot across the street from the Shoney’s.

He lost sight of the individual briefly as the individual went behind some buildings, but then

he saw the person again. When the police arrived, Liev directed the officers to the place

where he last saw the suspect. Liev then returned to the Shoney’s and had breakfast.

On cross-examination, Liev reiterated that the person pointed out by the manager was

walking, not running, down the street. The person was between fifty and one hundred yards

from the restaurant. Liev stated that, while he was on the phone with the dispatcher, the

person caught sight of him and made “an immediate left.” The suspect did not run or

brandish a weapon.

A recording of Liev’s 911 call was played for the jury. Liev reported the robbery and

reported a suspect’s description and location. Liev reported that he did not see a weapon.2

1

Prior to trial, the case against Simpkins was severed. Simpkins subsequently pleaded guilty as

charged. See Tirrone Akillia Simpkins v. State, No. M2012-01558-CCA-R3-PC, 2013 WL 775957, at *1

(Tenn. Crim. App. Feb. 28, 2013), perm. app. denied (Tenn. June 12, 2013).

2

Another 911 call also was admitted into evidence by stipulation. In this call, a woman identified

(continued...)

2

Francisco Carrizosa Perez testified that he had worked at the Shoney’s for ten years

as a cook and food preparer. On the morning of May 18, 2009, he arrived at 5:00 a.m. and

began working, as the restaurant opened for business at 6:00 a.m. At 6:05 a.m., he opened

the back door of the restaurant to take out some trash. Two men accosted him, one wearing

a mask and holding a pistol. The men told him not to look at them. The man with the gun

held the gun to Perez’s head and ordered him to the rear of a hallway in the building. The

man told him not to watch anything. The hallway led to the area with the refrigerators and

shelves for storage.

As Perez stood in the hallway, the man without the mask brought another employee

into the hallway. A few minutes later, two other employees arrived. Later, the manager

arrived. The manager told them to sit down and be still. Eventually, all of them left the area.

Arcelia Ruiz testified that, as of May 18, 2009, she had worked for Shoney’s for four

years. That morning, she was preparing food for the food bar when two men came into the

back area of the restaurant. One of the men had his face covered. Both men were carrying

pistols. The masked man grabbed Perez and put the gun to Perez’s head. The other man

approached Ruiz and threatened her with his gun. The man screamed at her “not to look”

and asked her where the office was. She told him that the manager was in the office. The

man who was threatening Perez sent Perez into the hallway and then went to the office. She

then was put into the hallway with Perez. She testified that the man without the mask was

pointing his pistol at them. He asked how many people were in the restaurant and then

watched for them to arrive. When Dora arrived, the man pointed the pistol at her and told

her to join Perez and Ruiz. Dora was confused, and when Teresa arrived, Teresa took Dora

by the hand and they joined Perez and Ruiz.3 The man without the mask remained nearby,

“[g]uarding [them] so [they] wouldn’t move or anything.” He ordered them to move further

down the hallway, and they complied.

Later, the manager and the other perpetrator came to the hallway. Ruiz was not

looking at the men, but she heard a voice she did not recognize tell them all to “bow down.”

Ruiz testified that they all complied and that their assailants then left.

2

(...continued)

only as Teresa reported, “We just got robbed.” Teresa also reported, “they both had guns” but that no one

had been injured. She also reported that the assailants had put them into the stockroom, “which was nice,”

and told them to “get in the corner” but did not threaten them.

3

Teresa, identified in the indictment as “Teresa Diane Cline,” did not testify. The record reflects

that she had passed away before trial. The record also reflects that the manager was unavailable to testify.

3

Dora Delacruz Moreno testified that she had been working at the Shoney’s for eight

days as of May 18, 2009. On that morning, she was preparing foods to be placed on the

buffet. As she was walking toward the kitchen, she saw a masked person “taking the

manager toward the safe.” She then saw another man “with his face uncovered.” This man

pointed a gun at her and spoke to her “a little strongly.” Because she did not speak English,

she did not understand what he said, so she remained where she was and “continued to stir

the gravy.” The man continued to speak to her. Teresa then came into the area and led her

“to where the other people were.” Moreno clarified that the other people were Perez and

Ruiz. The man waved his gun at them. The manager then arrived and “made signs for

[them] to all get down on the floor the way he did.” The two men then left. On May 22,

Moreno went to the police station and identified from a photographic array the man without

the mask, Tirrone Simpkins.

On cross-examination, Moreno testified that she and the others stayed in the

hallway/storage area for four to five minutes after the men left. She stated that they were in

the area a total of “maybe eight minutes.”

Officer Derek Smith of the Metropolitan Nashville Police Department (“MNPD”)

testified that he was on patrol during the Shoney’s incident. He responded to the call that

came in “right around 6 a.m. in the morning.” He spoke with the manager and obtained a

description of the two suspects, which he then broadcast. The description he announced was

“two male blacks, both around 6 feet tall, all wearing black, and both had masks on.” He

also broadcast that one of the suspects “ran north on Highway 70 and one had ran [sic] south

on Highway 70.”

The manager took Officer Smith around the restaurant, indicating the sites of the

suspects’ activities. Officer Smith described the office as “real small,” “just enough for like

a desk.” At the front of the restaurant, he saw “a black trash bag laying down on the floor

underneath the register.” He added, “The till was laying on the floor. There was a bunch of

– I don’t know if it was business cards or something laying all over the floor. But you could

tell that the till had been turned upside town or something of that effect.” Officer Smith

clarified that, by “till,” he meant the cash register drawer. Officer Smith testified that he

noticed “a small laceration to the left top” of the manager’s head.

Officer Patrick Ragan4 of the MNPD was on the burglary squad on May 18, 2009. He

responded to the Shoney’s call and drove to the area where a suspect had been seen. As he

drove through the neighborhood, a resident flagged him down and reported seeing someone

4

Although the transcript of the trial indicates the officer’s last name as “Reagan,” the witness spelled

it as “Ragan” at the hearing on the Defendant’s motion to suppress.

4

run into the crawl space beneath a house. Officer Ragan awaited the arrival of another unit.

When Sergeant Teague arrived, they walked to the house, and Sgt. Teague opened the door

to the crawl space and ordered the suspect to come out. The suspect came out and “was

pretty cooperative.” The suspect was placed in handcuffs, and Officer Ragan entered the

crawl space to look for a gun. He did not find a gun.

The suspect was taken to Officer Ragan’s patrol car and interviewed by Detective

Stokes. Officer Ragan then drove the suspect to the west precinct.

Sgt. Vernon Teague of the MNPD testified that he responded to the call of an “armed

robbery.” A woman called in a person running in her back yard, so he went to her house on

Bellevue Manor Drive. As he got out of his car, he saw footprints in the wet grass. As he

followed the footprints, a citizen approached him and told him that he had seen a crawl space

door that was open, so he had closed and locked it. Sgt. Teague saw footprints leading under

the house. He and other officers opened the crawl space door and yelled for the person to

come out, or they were going to send in a dog. A person, whom Sgt. Teague identified as the

Defendant, “responded right away and said, ‘I’m coming out.’” Sgt. Teague took the

Defendant into custody and searched him but did not find a gun.

A short time later, Sgt. Teague heard a report that the second suspect had been seen

running near the Bellevue Mall. Sgt. Teague drove to that location and, after a chase,

apprehended the second suspect.

Officer Paul Sorace of the MNPD also responded to the Shoney’s call. While looking

for one of the suspects, he came upon a “bundle of clothes” containing a black pair of pants

and a black sweatshirt. He subsequently assisted in apprehending the suspect in the Bellevue

Mall area. Officer Sorace stated that this man was Tirrone Simpkins.

Detective Diana McCoy of the MNPD responded to the Shoney’s call, arriving in less

than a minute. She had received a description of the suspect vehicle, a white SUV. She saw

a vehicle matching the description parked across the street from the Shoney’s. She

approached the vehicle and found a gray sweater or sweat top “in the bushes to the front of

the vehicle.” She ran the license plate tag of the vehicle and learned that it was registered

to the Defendant. As she began to walk around the area, she found a handgun and a black

hoodie.

Officer Tim Matthews, a crime scene investigator for the MNPD, testified that he

worked the scene. He processed the back door of the restaurant for latent fingerprints. He

also responded to the white SUV parked across the street. He photographed the vehicle,

opened it, and took photographs of the interior and contents, including a “large black plastic

5

garbage bag . . . full of money, loose money, bills, coins and rolled coins.” He also

processed the vehicle for latent fingerprints. Inside the SUV, he found a wallet containing

a Tennessee driver’s license for Jerome Maurice Teats.

Officer Matthews also collected the gun and clothing found by Detective McCoy.

Officer Matthews testified that the gun was loaded. He described the gun as a .357 magnum

revolver with a six-inch barrel.

Lorita Marsh, a “police identification supervisor,” testified as an expert in latent

fingerprint examination. Marsh testified that two latent prints recovered from the rear left

door of the SUV matched the Defendant. Latent prints recovered from the rear right door

matched the codefendant, Tirrone A. Simpkins.

Detective William Stokes of the MNPD responded to the scene and witnessed the

Defendant being taken into custody. After the Defendant was placed in the back of a patrol

car, Det. Stokes advised the Defendant of his Miranda rights. The Defendant stated that he

understood his rights and that he wanted to talk to Det. Stokes. The Defendant then told Det.

Stokes “that he committed the robbery with another male black named Tirrone.” The

Defendant also told Det. Stokes that the white SUV belonged to him.

After the Defendant was taken to the police station, Det. Stokes again advised the

Defendant of his Miranda rights, and the Defendant executed a written waiver. The

Defendant then gave a statement which was audio-recorded and transcribed. In his

statement, the Defendant explained that the codefendant approached him about committing

the robbery. The Defendant initially declined but then agreed after his unemployment

insurance ran out. On the morning of May 18, 2009, they both got into the Defendant’s

SUV, and the Defendant drove them to a parking lot near the Shoney’s. The men got out and

waited behind the restaurant, trying to decide what to do. When someone opened the back

door, the Defendant and the codefendant went into the Shoney’s. The Defendant stated that

he was the one who demanded the money from the manager. The Defendant was armed with

a .357. While the Defendant was getting the money, the codefendant, armed with a BB gun,

was “securing” the other employees. After the Defendant got the money, they both ran out

of the restaurant. The Defendant threw his gun in some bushes. He then decided to hide in

the crawlspace under a house, where the police found him.

The Defendant explained that the codefendant “put all the women . . . [in] some area

in the back of the store, he secured all of them and pushed them over into the area while I

went up front.” The Defendant added that he held “the guy” at gunpoint and took him up

front, where the man put the money into a bag. The Defendant stated that he got his gun

from the codefendant. The codefendant had a BB gun that looked like a real gun. The

6

Defendant did not know why the codefendant gave him the real gun and kept the BB gun for

himself. The Defendant described their preparations immediately before the robbery as

follows:

So we walked to the back of the Shoney’s and then he was like, he was like,

“What do you think we should do?” I said, “I don’t know man,” I said, “I’m

not sure man, what- whatever you do that’s what I’m gonna do.” And then we

sat there for about five more minutes then the guy from the inside opened up

the back door, and we both ran in there . . . .

James Teats, Sr., the Defendant’s father, testified on behalf of the defense. Teats

stated that he raised the Defendant and his four other children. Teats had custody of his

children because the children’s mother had mental health problems.

In May 2009, the Defendant was living with Teats and had been for several years.

The Defendant had been employed by Comcast and also had attended community college at

Nashville Tech. Teats began noticing changes in the Defendant:

Well, he got really depressed when he got laid off his last job at

Comcast. And he started coming to me. He started coming to me saying he

was getting nervous. And he quit eating. He would break out in a sweat. And

he was – he come [sic] to me and he talked to me one day. He said, dad, I

think I’m having momma’s illness. I’m so nervous I don’t know what to do.

And he quit eating. The only thing he could eat was Ramen Noodles.

And I begged him to go to the doctor. And he kept making excuses.

....

His eyes would be bulging out like they wanted to pop out of his head.

....

He lost a lot of weight.

After the Defendant was arrested, Teats discovered a lot of over-the-counter medications in

the Defendant’s room as well as “a lot of bottles of urine.”

Teats stated that he noticed the changes in his son over a period of several months

prior to the Shoney’s incident.

7

James Teats, Jr., the Defendant’s older brother, testified that he was living in

Fairview, Tennessee, in 2009. He would visit his family in Nashville twice a month during

family gatherings. He began to notice changes in the Defendant: “I began to notice . . . him

becoming isolated and then he – we’d be outside and everyone would be looking normal and

he’d just begin to sweat profusely. . . . And then he also acted nervous-like.” Teats, Jr. also

noticed the Defendant losing weight. Teats, Jr. stated that he noticed these changes

“probably over a year or so” prior to the Shoney’s incident.

Juanita Carney, the Defendant’s sister, testified that she was a nurse technician. She

and her family were “really close.” She, too, began to notice changes in the Defendant:

I observed him acting really depressed and on edge. He would get

angry quite often and more and more often. And he never seemed to be able

to complete a task at all that my dad would have him to do around the house.

He would frequently just leave in the middle of doing what my dad needed him

to do and would just be in his room just looking like he was spaced out.

She explained that, when the Defendant was healthy, he “would be very helpful” and not

abandon projects.

Carney also noticed that the Defendant was losing weight and that he was “sweating

excessively.” His behavior became “odd” and his room, previously neat, became “very

messy; clothes everywhere; food everywhere.” She became very concerned.

A few weeks before the Shoney’s incident, Carney hosted a family get-together at her

house. When the Defendant arrived, she testified,

his eyes were just bulging out of the sockets. And he was shaking and acting

really nervous like he was on edge. He couldn’t even give me a direct answer

when I said, hi, how are you doing. He just looked at me.

And then during the course of the meal I asked him about going to the

doctor to see what was going on and he just got very angry with us and just

started getting very offensive and would not look any of us in the eye. His

eyes were just bulging, they were jumping. He couldn’t sit still and was acting

very angry throughout the course of the dinner.

Carney testified that, based on her medical training, she suspected that the Defendant had a

thyroid condition.

8

Carney discussed her concerns with her family, and they decided to do an

“intervention” on her next day off in order to take the Defendant to the doctor. They

scheduled the intervention for May 19, 2009, the day after the Shoney’s incident. Because

of the Defendant’s arrest, they were not able to conduct the intervention.

After the Defendant was arrested, Carney helped to clean his room. She discovered

over fifteen bottles of vitamins “to help with nervousness, with stress, with fatigue.”

Malia Bodruzzaman, the Defendant’s fiancé, testified that, when she first met the

Defendant six years prior, he “was always working out and a health fanatic and . . . sports

oriented.” Then, she continued, “[i]t’s like he changed into a different person.” She

explained,

Well, physically he started losing weight. The – the eyes started

bulging more but he was losing weight gradually until it increased to where

. . . it was faster, the weight loss.

And – and I noticed agitation. And I guess this would be mentally. He

– he seemed pretty mentally imbalanced to me. And like he would say things

that were off the wall or mumble to himself or – and when we would be

talking about something, he would say things that are just, you know, off the

wall and not pertaining to what we were actually talking about or what I asked

him.

And physically I noticed a lot of changes. And not just weight loss and

his eyes, it was – he – it was a pretty scary sight to see somebody change like

that, yet I didn’t really think – I thought it was just him losing weight. Even

if he ate, it didn’t seem to – he didn’t seem to gain weight or anything.

And mentally he – I could say – I would – I would describe it as

somebody on edge pretty much. Like how I would really just say is like

someone that’s going crazy.

She began noticing these changes during the six months prior to the Defendant’s arrest.

Jeffrey Alan Teats, the Defendant’s other brother, testified that, in the months

preceding the Defendant’s arrest, the Defendant could no longer play basketball as well as

he once had. He also noticed the Defendant’s hands shaking when they played video games,

and he stated that the Defendant could not seem to stay focused on one activity at a time.

9

Dr. Murray Smith, board certified in internal medicine, testified that, after the

Defendant’s arrest, he was retained to examine the Defendant. Dr. Smith testified that he

spoke with the Defendant’s family members and reviewed the Defendant’s medical records.

In June 2009, blood tests revealed that the Defendant’s thyroid function was “severely

abnormal.” Dr. Smith also met with the Defendant three times in 2010. Based on Dr.

Smith’s review and examinations, Dr. Smith diagnosed the Defendant as suffering from

Grave’s disease. According to Dr. Smith, Grave’s disease involves thyroid toxicosis,

resulting from an over-production of the thyroid hormone, thyroxine. Dr. Smith explained

that “what thyroid toxicosis means is that the body, the cells, are poisoned by the thyroxine.

And that poisoning occurs everywhere including the brain.” Dr. Smith opined that, on May

18, 2009, the Defendant was both physically ill and also “severely mentally ill with psychosis

due to the thyroid toxicosis.” As to the Defendant’s actions at Shoney’s, Dr. Smith testified,

“I believe he was not rational to be able to understand the situation, to make good choices

about how to handle the situation or be appreciative of the consequences of the behavior.”

In conjunction with his examination of the Defendant, Dr. Smith prepared a written

report which was admitted into evidence. This report includes the following:

Thyrotoxicosis has been known for at least two centuries to cause

severe physical disease. Since 1896, many medical reports have documented

severe mental status changes caused by thyrotoxicosis, including psychosis.

In addition to severe anxiety, other mental changes frequently occurring

because of thyrotoxicosis include confusion, racing thoughts, and impulsive

reactivity. The mental changes are similar to the effect produced by stimulant

drugs. The excessive thyroid hormone acts to drive the cellular metabolism to

a higher level than normal with resultant cellular dysfunction. The excessive

thyroid hormone essentially produces a state of involuntary brain cell

intoxication.

[The Defendant] exhibited classic progressive physical and mental

changes caused by thyrotoxicosis beginning in the Spring of 2008. Because

of his fear he had a mental diagnosis and because of his terrible experiences

with the consequences of his mother’s mental illness, he resisted professional

medical assistance. Eventually, the progressive mental dysfunction caused by

the thyrotoxicosis resulted in his inability to make a rational decision to get

professional help. He also began exhibiting abnormal behavior noted by his

family and fiancé which he could not explain. He also had hallucinations as

a result of his brain cells[’] pathological dysfunction state. His mental state at

the time Tirrone Akilla [sic] Simpkins came to him in May 2009 made him

10

unable to resist the demands made by Mr. Simpkins, as well as impairing [the

Defendant’s] judgment and causing impulsive decision making.

It was stated by the Vanderbilt Forensic Evaluation team that if [the

Defendant’s] thyrotoxicosis (Grave’s disease) was not properly treated, it

could have a significant effect on his mental status. At the time of the robbery

on 05/18/2009, [the Defendant’s] Grave’s disease was far advanced, active,

and never treated.

It is my professional opinion, based on my experience and training, that

the advanced disease of thyrotoxicosis present in [the Defendant] at the time

of the robbery on 05/15/2009 [sic] resulted in such severe mental dysfunction

that [the Defendant] could not make reasonable judgments and decisions or

resist coercion.

On cross-examination, Dr. Smith stated that psychosis occurred in about ten to twenty

percent of persons suffering from Grave’s disease. He also stated that Grave’s disease could

be controlled through medication. The Defendant was placed on medication at the end of

June 2009, and it was “working.” Dr. Smith acknowledged that the Defendant did not report

having hallucinations to the psychiatric nurse who examined him in June 2009. Dr. Smith

explained that the Defendant had a “phobia” about being diagnosed with a mental illness

because of his mother’s mental illness.

In rebuttal, the State called Staci Turner, an adult psychiatric nurse practitioner. She

performed an initial psychiatric intake evaluation on the Defendant on June 15, 2009. The

evaluation lasted twenty to thirty minutes. The Defendant did not appear to her to be

experiencing any hallucinations at the time. He did not report experiencing any

hallucinations at that time. She did not note any signs of psychosis during her evaluation.

On cross-examination, Turner stated that the Defendant had “discussed symptoms of

anxiety” during the evaluation.

Dr. Kimberly Brown, a forensic psychologist, also testified for the State in rebuttal.

She received a request from the trial court in this case on October 1, 2009, to conduct an

evaluation of the Defendant. She reviewed various records in preparation for her evaluation,

and she met with the Defendant on November 9, 2009, and December 7, 2009. The first

meeting lasted forty minutes, and the second meeting lasted one hour and fifteen minutes.

11

Dr. Brown testified that psychosis is “a break from reality.” She added that, during

her interviews with the Defendant, she did not note any signs of psychosis. Rather, she

thought,

[H]e was very organized in his thinking. He was very logical. [She] had no

trouble understanding him, he had no trouble understanding [her]. He was

very cooperative and pleasant. It was a very normal conversation. He was

able to provide a lot of details for [her] about his life.

Dr. Brown, however, acknowledged that the Defendant “described sometimes people calling

his name or hearing a knocking on the door and there not being anybody there.” She also

acknowledged that the Defendant was on medication for Grave’s disease when she met with

him.

As to the Defendant’s state of mind on the morning of May 18, 2009, Dr. Brown

testified, “I guess my opinion was that he wasn’t suffering from a mental problem that caused

him to not know what he was doing or appreciate the wrongfulness of his actions.” She

explained that the circumstances of the offenses

indicated that not only did he know the wrongfulness of his alleged conduct,

but he took several steps to try to evade detection or keep from getting caught.

So for example: Arriving at a building when it first opens or when it

is still somewhat dark, wearing a mask, having an extra set of clothes on to

help conceal identity, running from the scene, hiding; those are all behaviors

that indicate to me that someone is aware of what they are doing is wrong and

they are trying to keep from being caught or detected.

Dr. Brown added that the Defendant’s statement to the police “strengthen[ed]” her opinion,

describing his statement as “[v]ery articulate, intelligent, [an] organized man who had a good

ability to communicate in a rational clear manner.”

Det. Stokes, recalled by the State, stated that, during his initial interview of the

Defendant, the Defendant asked if it would help him if he provided information about other

crimes. Later, during his statement at the station, the Defendant provided detailed

information about another crime.

On the basis of this proof, the jury convicted the Defendant of one count of aggravated

robbery and four counts of especially aggravated kidnapping. After a hearing, the trial court

sentenced the Defendant as a Range II offender to seventeen years for the aggravated robbery

12

conviction and thirty-three years for each of the especially aggravated kidnapping

convictions. The trial court ordered the kidnapping sentences to be served concurrently to

one another but consecutively to the aggravated robbery sentence, for an effective sentence

of fifty years in the Tennessee Department of Correction (“TDOC”).

In this appeal as of right, the Defendant raises seven issues: (1) the trial court erred

in denying his motion to suppress; (2) the trial court erred in denying his motion to disqualify

the district attorney general’s office; (3) his convictions for especially aggravated kidnapping

must be reversed on due process and double jeopardy grounds; (4) the trial court improperly

instructed the jury on criminal responsibility; (5) the evidence was not sufficient to support

his convictions; (6) cumulative error; and (7) his sentence is excessive. We will address each

of these issues in turn.

Analysis

Denial of the Defendant’s Motion to Suppress

In February 2011, the Defendant filed a motion to suppress his statements to the

police. The Defendant contended that his initial statement was made without the benefit of

Miranda warnings and, thus, was inadmissible; that this taint carried over to his subsequent

statement made after he was given his Miranda warnings; and that his medical condition

rendered him unable to validly waive his rights to remain silent and to have a lawyer present.

The State resisted the motion, and the trial court held a hearing in March 2011 at which the

following proof was adduced:

Dr. Murray Wilton Smith testified that he was the assistant medical director at

Cumberland Heights Alcohol and Drug Treatment Center. He had been licensed to practice

medicine in Tennessee since 1964. His experience included twenty years of internal

medicine and twenty years of “addiction medicine.” He performed a “series of evaluations”

on the Defendant related to his “medical problem called hyperthyroidism.” His evaluations

included reviewing the Defendant’s medical records from the TDOC; Dr. Kimberly Brown’s

report; and a transcript of the Defendant’s interview with the police. He also met with the

Defendant on three occasions and spoke with members of the Defendant’s family and the

Defendant’s fiancé. Dr. Smith then prepared a written report, which was admitted into

evidence.

Dr. Smith testified that Grave’s disease has varying effects on different individuals.

The TDOC records indicated that, in June 2009, the Defendant was suffering from “a very

high level of thyroxine which is the thyroid hormone that is toxic.” Dr. Smith clarified that

the Defendant’s blood test indicated that his level of thyroxine was “about four to five times

13

higher” than normal. The Defendant’s reported symptoms began about a year prior to June

2009. Dr. Smith first met with the Defendant in June 2010, a year after he was put on

medication for his condition. Dr. Smith stated that the Defendant reacted well to his

medication.

Dr. Smith testified that the symptoms the Defendant reported experiencing prior to

being medicated included “severe anxiety, restlessness, unable to sleep, weight loss, nausea,

dizziness, nose bleeds and then later on as it progressed he developed a psychosis with

hallucinations and grossly abnormal behaviors.” As an example of a “grossly abnormal

behavior,” Dr. Smith referred to the Defendant keeping his urine in bottles in his room.

When asked about the reported hallucinations, Dr. Smith explained,

He would see people in the other side of the room and then go over to see if

they were there and they weren’t there. He would see people out in the yard

beside the driveway and go to look and there would be nobody there. And he

would hear knocking on the door, go to the door to let the person in and there

would be no one there.

Dr. Smith also stated that, prior to being medicated, the Defendant was unable to think

logically “[b]ecause his brain was poisoned, which is what toxic means is the brain was

poisoned by the toxic effects of the thyroid hormone that was in excess.”

Asked about his opinion of the Defendant’s mental state on May 18, 2009, Dr. Smith

responded, “he had psychosis due to thyrotoxicosis with hallucinations.”

On cross-examination, Dr. Smith affirmed that the Defendant had been diagnosed

with Grave’s disease and stated that the “Comprehensive Textbook of Psychiatry says that

about 20 percent of Grave’s disease have psychosis.” Dr. Smith also stated that he reviewed

some of the Defendant’s school records: “In the fall of 2007 and in the spring of 2008 he had

excellent grades. Then beginning in the summer of 2008 his grades fell off much lower. So

we have documentation that his ability to perform in school was decreased at the same time

his symptoms of thyrotoxicosis began.”

When asked whether the Defendant had reported trying to self-medicate prior to his

diagnosis, Dr. Smith responded,

[The Defendant] had an experience in that as a child. His mother had

bipolar illness and was hospitalized multiple times in psychiatric hospitals. As

a result of that, when he developed the psychiatric symptoms that were

basically for him identical to his mother’s illness and he saw how badly she

14

had been treated and talked about, he was afraid to go to a doctor and be

diagnosed so he treated himself. He treated himself with something to calm

him down because he was so nervous and anxious and agitated.

Dr. Smith clarified that the Defendant reported that he took “sleeping pills, tranquilizers and

drank some.” According to Dr. Smith, these efforts “worsened and would be expected to

worsen the symptoms and decrease his mental functioning in terms of his thinking.”

Confirming that he understood the legal definitions of intentional and knowing, Dr.

Smith testified that, in his opinion, the Defendant was not able to form the mental states of

intentional or knowing in May 2009 as a result of the Defendant’s medical illness “[b]ecause

his brain function was toxic or poisoned by his mental illness caused by his thyroid disease.”

Dr. Smith added,

[The Defendant] could mechanically do things like dress himself or

drive the car, but the finer points of reasoning where he would reflect on the

circumstances, the different choices, the consequences of those different

choices, that fine reasoning, that higher thinking was not possible because his

brain cells were not functioning properly because they were poisoned by the

excess thyroid hormone.

Dr. Smith testified that the Defendant would not be able “to reasonably resist” pressure from

the codefendant.

Dr. Smith also testified that it was his “professional opinion that [the Defendant’s]

mental state at the time on the 18th of May, 2009, was such that he could not knowingly

understand to waive his Miranda rights.”

Officer Patrick Ragan of the MNPD testified that he was present at the time the

Defendant was found hiding under the crawlspace. When the Defendant crawled out, Officer

Ragan and at least two others were present. The officers “grabbed his hands and placed him

in handcuffs and asked him, you know, where – where the gun was for [their] safety and for

everybody else’s safety.” The Defendant did not have the gun in his possession, and Officer

Ragan did not find it in the crawlspace. Officer Ragan then walked the Defendant to his

patrol car and placed him inside. Officer Ragan stated that the Defendant “was pretty

compliant” and “didn’t resist any” during their walk to the car. Officer Ragan thought that

there “was probably another officer with” them, and he testified that there was “no force

used.” Officer Ragan then “had a detective come out to go to talk with him there at the

scene. [They] were trying to locate the pistol so a kid wouldn’t find it.” Officer Ragan stated

that he witnessed Det. Stokes advise the Defendant about his Miranda rights.

15

Officer Ragan subsequently drove the Defendant to the police station. During the

drive, the Defendant did not say anything about his health or about needing medical attention.

On cross-examination, Officer Ragan acknowledged that, when they initially asked

the Defendant where the gun was, the Defendant stated that he did not have it. This

interaction occurred before the Defendant was given his Miranda warnings. Officer Ragan

stated that, after Det. Stokes gave the Defendant his Miranda warnings, the Defendant “was

very forthcoming and he was – he was very cooperative.”

Det. William Stokes testified that, when he arrived on the scene where the Defendant

was located, the officers already were handcuffing him. As Officer Ragan and Sgt. Teague

walked the Defendant to the patrol car, Det. Stokes heard Sgt. Teague tell the Defendant “to

simply cooperate with the detective and tell him everything that he wanted to know.” After

the Defendant was in the car, Det. Stokes asked him his name, to which the Defendant

replied “Jerome Teats.” At that point, 6:30 a.m., Det. Stokes verbally advised the Defendant

about his Miranda rights. Det. Stokes asked the Defendant if he understood his rights and

the Defendant responded affirmatively. The Defendant told Det. Stokes that he wanted to

talk with him about it. The Defendant then gave the detective “pretty detailed information”

about what had happened and provided information about his accomplice. The Defendant

also agreed to provide more detail at the police station.

At the station, Det. Stokes repeated the Miranda warnings to the Defendant. The

Defendant indicated that he understood and signed the written rights waiver at 9:30 a.m. The

Defendant again agreed to speak with the detective. The Defendant “never told [Det. Stokes]

he did not feel well.” The Defendant did not ask to go to the hospital. He did not ask for a

drink of water or to go to the restroom.

On cross-examination, Det. Stokes acknowledged that Sgt. Teague told the Defendant

something similar to “better tell the detective everything he needs to know.” Det. Stokes

denied that this advice was a threat.

The Defendant testified that, after he was placed in handcuffs,

one of the officers grabbed [his] arm in a [sic] unusual way and put force upon

[him] to the point where it felt like it was about to be broken. And said, you

had better be telling me the truth; you – you better give this officer over here

everything – the detective everything he wants to know about what’s going on.

16

And [he] was – [he] never walked over to the police cruiser, [he] was

practically drug [sic] over there while [he] was still being subdued in this same

manner.

The Defendant also testified as follows about what happened with the detective:

Once I had contact with the detective he immediately started asking me

questions about the other person. He asked me questions about the crime and

he also made – he made several threats about what I would – like you – you’re

in very serious trouble. And I said, what do you mean I’m in very serious

trouble. He said, I can put a lot of charges on you and I can make your life real

hard and I can put you away for life.

And I’m like, what do you mean you can put me away for life. He said,

exactly what I just said. And he – he said this to me while I was in the patrol

car before he Mirandized me.

The Defendant testified that the detective did not “Mirandize” him until after he was

questioned. The Defendant stated that he answered questions because he was “scared” and

“didn’t want [the detective] to hurt” him. The Defendant testified that the detective’s

presence standing at the patrol car while the Defendant was seated inside was “very

aggressive” and that the detective pushed him “at least one time.”

The Defendant testified that, after he arrived at the station, he told an officer that he

“needed an ambulance because [his] heart was racing and it would not stop.” The officer

responded, “[N]o, you’re not getting anything until you talk to the detective.” The

Defendant’s request to go to the bathroom also was refused.

The Defendant stated that, once the detective arrived, and prior to the detective’s

giving him his Miranda rights, the detective

went over several times what happened during the crime. And if I said

something that he didn’t like, he would get angry and he would just keep

asking me over and over and over and over again. And then it’s like he was

making me – trying to get me to say things.

Like I told him that I didn’t hit the manager in the head. I said, I didn’t

hit him. And he said, he said, yes, you did, you did hit the manager. And I

said, no, I did not hit the manager.

17

He said, well, how – how did he get this big bruise on his head. I said,

I don’t know what you’re talking about. And he kept doing this over and over

again.

And for some reason I just said, well, if you said I did it, then I guess

I accidentally did it then.

The Defendant affirmed that “all this was done prior to the Miranda warnings that were done

on the tape.”

Asked about his physical and mental health on the day of the offenses, the Defendant

responded,

The day that this happened I was – I couldn’t function properly. My

thoughts were racing and I couldn’t answer questions in a way to where I can

say that I was fully thinking about them. It was just whatever was popping in

my head, that’s what I was saying to him. And my heart was beating fast as

it had always been. I couldn’t – I never could stop sweating. My eyes were

always bothering me because – the disease bothers my vision or it bothers my

eyes and other things that – like the hallucinations. The hallucinations always

occur. They got worse, and worse and worse, even up to this date.

And that day I can’t recall exactly if I had a hallucination but I know I

hadn’t slept. I hadn’t slept.

The Defendant added that he had taken Xanax that day.

On cross-examination, the Defendant testified that the policeman who accompanied

him to the patrol car after he was handcuffed was pulling his arms up and caused him pain.

This same officer told him to answer the detective’s questions “or I’ll break your arm.” The

Defendant reiterated that Det. Stokes then threatened him and pushed him on his shoulder,

all before giving the Defendant his Miranda rights. The Defendant admitted to later

providing information on other robberies in which the codefendant was involved. He did this

because Det. Stokes told him that, if he provided such information, “he wouldn’t put me

away for the rest of my life. . . and also that he would only seek one charge against me and

that would be all I got.”

Called in rebuttal, Officer Ragan denied pulling the Defendant’s arms after

handcuffing him and denied threatening to break his arm. Also called in rebuttal, Det. Stokes

denied pushing the Defendant, denied threatening to put the Defendant “away” for life, and

18

denied telling the Defendant that he was going to make his life hard. Det. Stokes added that,

during their conversation at the patrol car, “[t]here wasn’t any aggressive questioning or any

belligerent answering whatsoever. He was very cooperative.”

After taking the foregoing under advisement, the trial court denied the Defendant’s

motion to suppress. The record before us contains neither findings of fact nor conclusions

of law in support of the trial court’s ruling. As the above summary makes clear, however,

the trial court had before it proof of two different versions of what occurred during and after

the police took the Defendant into custody. The trial court’s ruling indicates that the trial

court rejected the Defendant’s version and accredited the State’s version. That is, the trial

court’s ruling indicates that it found the Defendant’s testimony not credible. The trial court’s

ruling also implies that it found Dr. Smith’s testimony insufficient to demonstrate that the

Defendant was unable to execute a valid waiver of his constitutional rights prior to making

a statement.

When this Court reviews a trial court’s denial of a defendant’s motion to suppress,

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We are bound by the trial court’s

(implied) findings of fact unless the evidence in the record preponderates against them. Id.

Moreover, because the State prevailed in the trial court, it “is entitled to the strongest

legitimate view of the evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from the evidence.” Id. We review the trial

court’s application of the law to the facts de novo, however, with no presumption of

correctness. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing State v. Walton, 41

S.W.3d 75, 81 (Tenn. 2001)).

The proof, as accredited by the trial court, established that the Defendant had two

verbal interactions with the police prior to being given his Miranda warnings. First, as he

was being taken into custody, one of the officers asked the Defendant where the gun was.

The Defendant responded that he did not have it. Second, as the Defendant was being

escorted to the patrol car, Sgt. Teague told him to cooperate with the detective and to answer

the detective’s questions.

As a general rule, the statements a defendant makes in response to custodial

interrogation are not admissible at trial unless preceded by the warnings mandated in

Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), and a waiver thereof. See State v. Climer,

400 S.W.3d 537, 557 (Tenn. 2013). “Interrogation ‘refers not only to express questioning,

but also to any words or actions on the part of the police (other than those normally attendant

to arrest and custody) that the police should know are reasonably likely to elicit an

19

incriminating response from the suspect.’” State v. Sawyer, 156 S.W.3d 531, 534 (Tenn.

2005) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). Both the officer’s question

to the Defendant about the location of the gun and Sgt. Teague’s subsequent admonition to

answer the detective’s questions were instances of interrogation conducted while the

Defendant was in custody and prior to being given his Miranda warnings.

Therefore, we must determine whether the Defendant’s response to the query about

the location of the gun should have been suppressed. We hold that the trial court committed

no error in not suppressing the Defendant’s statement that the gun was not in his possession.

The United States Supreme Court has recognized that custodial interrogation necessary to

secure an officer’s safety or the public’s safety need not be preceded by the Miranda

warnings. See New York v. Quarles, 467 U.S. 649, 657-59 (1984). In the instant case, the

police knew that a gun had been utilized in the Shoney’s incident. Accordingly, the officers

taking the Defendant into custody were entitled to ask him, prior to administering Miranda

warnings, about the location of the gun. See State v. Ricky Ronald Crawford, No. E2005-

02018-CCA-R3-CD, 2007 WL 283141, at *8 (Tenn. Crim. App. Feb. 1, 2007), perm. app.

denied (Tenn. May 21, 2007). The Defendant is entitled to no relief on this basis.

We next must determine whether Sgt. Teague’s admonition to the Defendant, made

prior to the Defendant receiving his Miranda warnings, rendered inadmissible the

Defendant’s later statements, which were made after the Defendant received his Miranda

warnings and after he waived his rights against self-incrimination and to the assistance of a

lawyer. That is, did Sgt. Teague’s pre-Miranda admonition render involuntary the

Defendant’s subsequent waiver of his constitutional rights? See Moran v. Burbine, 475 U.S.

412, 421 (1986) (holding that a suspect’s waiver of his Miranda rights “must have been

voluntary in the sense that it was the product of a free and deliberate choice rather than

intimidation, coercion or deception”). We hold that it did not.

This Court looks to “the totality of the circumstances” when determining whether a

defendant validly waived his Miranda rights. See State v. Thacker, 164 S.W.3d 208, appx.

248 (Tenn. 2005) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994)). We

reiterate that the trial court impliedly accredited Det. Stokes’ testimony over the Defendant’s

in determining what happened at the scene of the Defendant’s apprehension. The record

reflects that, although Det. Stokes acknowledged that Sgt. Teague told the Defendant that he

should tell the detective everything the detective wanted to know, the Defendant already had

indicated his willingness to cooperate. The Defendant did not resist being taken into custody

and responded truthfully to Officer Ragan’s query about the gun. Det. Stokes stated that the

Defendant “walked” to the patrol car while being escorted by Officer Ragan and Sgt. Teague

and that there was “[n]othing [he] would describe as aggressive” about this encounter. Det.

Stokes testified that, after the Defendant was in the patrol car and after Det. Stokes advised

20

him of his rights, the Defendant “did indicate to me that he understood his rights because I

asked him if he understood his rights. And said – he said he wanted to speak with me about

it at that point.” Det. Stokes denied that Sgt. Teague’s remark to the Defendant was a

“threat.”

We hold that the Defendant has failed to establish that the proof preponderates against

the trial court’s implied determination that he validly waived his Miranda rights.

Accordingly, the Defendant is entitled to no relief on this basis.

Trial Court’s Refusal to Disqualify District Attorney General

The offenses in this case were committed in May 2009. The Defendant was indicted

in October 2009. On August 5, 2011, the Defendant, acting pro se, filed a civil complaint

in federal court naming as defendants the Davidson County District Attorney General and

others in his office, including the assistant district attorney general who prosecuted this case;

one of the Davidson County criminal court judges; the Tennessee Department of Correction;

and others. In this civil lawsuit (“the Lawsuit”), the Defendant sought monetary damages

on the basis that he was unlawfully incarcerated on an unrelated case.

On October 24, 2011, days before the Defendant’s trial in this matter was scheduled

to commence, the defense filed a pleading 5 styled “Motion to Disqualify Davidson County

District Attorney Victor S. (Torry) Johnson III, Assistant District Attorney Rachel Marie

Sobrero, and/or the Davidson County District Attorney’s Office Due to a Conflict of Interest

and/or a Strong Appearance Thereof.” This motion references the Lawsuit and provides as

follows:

Although the suit relates to the cases of which [the Defendant] was

previously over incarcerated such further relates significantly to the present

criminal cases against [the Defendant] as such raises claims against the above

due to their claimed concerted actions of having interfered with, hindered and

prevented the hearing of [the Defendant’s] motion and other attempts at

securing his release, from over incarceration, in order to, among other things,

gain a tactical advantage in the present case including but not limited to

preventing him from being able to secure his release in order that he might

assist substantially in investigating and preparing an aggressive defense, in

order to interfere with his preparation thereof, and further to have him serve

5

Defense counsel signed this pleading but followed his signature with the notation “drafted by

Jerome Teats.”

21

as much time as possible on said present charges even absent any judicial

determination of guilt thereon.

The trial court conducted a hearing on this motion on October 27, 2011. The defense

put on no proof. The trial court denied the motion, stating from the bench that

there is no proof either that anyone in the district attorney’s office has done

anything unethical or is doing anything unethical by pursuing [the Defendant]

on this aggravated robbery and kidnapping case. . . . And there is no indication

here that I’ve heard of, and there’s been no proof that the DA or the assistant

DA would not act impartially and responsibly in this case.

This Court reviews a trial court’s decision on a motion to disqualify a prosecutor for an abuse

of discretion. State v. Coulter, 67 S.W.3d 3, 28 (Tenn. Crim. App. 2001) (citations omitted),

abrogated on other grounds by State v. Merriman, 410 S.W.3d 779, 793 (Tenn. 2013).

We discern no abuse of discretion here. The Defendant argues in his brief to this

Court that

[t]he causes of action filed in the [L]awsuit established an actual conflict for

the District Attorney to prosecute [this] case. The actual conflict in this matter

mandated disqualification of the entire District Attorney’s staff. [The

Defendant] filed a written Motion to Disqualify the District Attorney and his

staff because they had a conflict of interest or appearance of impropriety to

prosecute [this] case.

In other words, the Defendant is claiming that his motion should have been granted because

the Lawsuit, filed weeks before his trial was to begin, created a conflict of interest and/or

appearance of impropriety in the prosecutors’ pursuit of the instant case.

We agree with the State that a criminal defendant cannot create a conflict of interest

(or an appearance of impropriety) requiring the disqualification of a prosecutor’s office

simply by filing a federal lawsuit against the office and its members. We emphasize that the

Defendant put on absolutely no proof of any such conflict of interest or appearance of

impropriety other than a copy of the Lawsuit. This issue being devoid of any merit, the

Defendant is entitled to no relief on this basis.

22

Validity of Kidnapping Convictions

The jury convicted the Defendant of four counts of especially aggravated kidnapping

resulting from the confinement of victims Perez, Ruiz, Moreno, and Teresa in the back

hallway area of the Shoney’s while the Defendant robbed the manager. The Defendant

contends that these convictions cannot stand because they violate his due process rights;

violate his rights against double jeopardy; and were based on improper jury instructions. We

will address each of these contentions in turn.

Due Process

In 1991, the Tennessee Supreme Court considered in a consolidated appeal two

unrelated cases in which each of the two defendants committed an armed robbery of a

business. See State v. Anthony, 817 S.W.2d 299, 300 (Tenn. 1991). In the first case, the

defendant (Anthony) and his cohort committed an armed robbery of a Shoney’s restaurant

in Knoxville, Tennessee. When the two men approached the restaurant, they found three

employees outside near the dumpster. Anthony, who was armed, ordered the employees to

the ground and left his cohort to watch over them. Anthony entered the restaurant and

encountered two more employees. At gunpoint, he ordered them to open the safe, which

involved all three of them walking to the office. One of the employees told Anthony that the

safe was elsewhere, resulting in Anthony ordering her to stay in the office while he and the

other employee (Kesterson) proceeded to the safe. On his way out of the restaurant, Anthony

encountered yet another employee, whom Anthony ordered, at gunpoint, to return to the

restroom and stay there. Anthony was subsequently convicted by a jury of the armed robbery

of Kesterson and the aggravated kidnappings of Kesterson and the other five employees. See

id. at 301.

In the second case, the defendant (Martin) entered an insurance agency while armed.

Martin encountered the owner and a secretary. Martin told the owner to lie on the floor and

obtained cash from him. Martin also took the agency’s money from the secretary as well as

some cash from her wallet. Martin then took the owner by the arm and ordered both persons

into the men’s restroom, telling them to stay there. Martin then fled. Martin subsequently

was convicted of two counts of armed robbery (one as to each victim) and two counts of

aggravated kidnapping (one as to each victim). See id. at 302.

On review, our supreme court framed the issue as “the propriety of a kidnapping

conviction where detention of the victim is merely incidental to the commission of another

felony, such as robbery or rape.” Id. at 300. The court held that none of the kidnapping

convictions could be sustained on the basis that the dual convictions offended Tennessee’s

constitutional guarantee of due process. Id. at 306, 307. Our high court articulated the

23

appropriate test, to be applied by the appellate courts on review, as follows: “whether the

confinement, movement, or detention is essentially incidental to the accompanying felony

and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether

it is significant enough, in and of itself, to warrant independent prosecution and is, therefore,

sufficient to support such a conviction.” Id. at 306.

Our supreme court later modified this test in State v. Dixon, 957 S.W.2d 532, 535

(Tenn. 1997). See State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 1008) (explicitly

recognizing that the test set forth in Dixon replaced the Anthony test). In Dixon, the court

described Anthony’s “essentially incidental” test as designed to “only prevent the injustice

which would occur if a defendant could be convicted of kidnapping where the only restraint

utilized was that necessary to complete the act of rape or robbery.” 957 S.W.2d at 534-35.

The Dixon court added that “any restraint in addition to that which is necessary to

consummate rape or robbery may support a separate conviction for kidnapping.” Id. at 535.

The new test set forth in Dixon consisted of two prongs: (1) whether the defendant’s

movement or confinement of the victim was beyond that necessary to consummate the

accompanying felony, and, if so, (2) whether the additional movement or confinement

prevented the victim from summoning assistance, lessened the defendant’s risk of detection,

or created a significant danger or increased the victim’s risk of harm. Id. If each prong was

satisfied, a separate kidnapping conviction would be sustained. Dixon involved a single

victim, and the defendant was convicted of aggravated kidnapping, aggravated assault, and

attempted sexual battery. Id. at 533. The supreme court affirmed the defendant’s

convictions. Id. at 532.

In 2012, the Tennessee Supreme Court overruled Anthony and its progeny, including

Dixon and Richardson, in State v. White, 362 S.W.3d 559, 578 (Tenn. 2012). In White, the

defendant was convicted of burglary, aggravated robbery, and especially aggravated

kidnapping arising from the defendant’s robbery of a Clarksville restaurant. Significantly,

the victim of the robbery and kidnapping offenses was a single individual. In analyzing

whether the defendant’s dual convictions for aggravated robbery and especially aggravated

kidnapping could stand, White rejected Anthony’s reliance on an appellate court’s due

process scrutiny of kidnapping convictions imposed in conjunction with convictions of an

accompanying felony. Id. at 577-78. Instead, the White court shifted the appellate analysis

to a standard sufficiency of the evidence review of a properly instructed jury’s assessment

of the facts. Id. The White court emphasized that it was the jury’s “primary obligation . . .

to ensure that a criminal defendant has been afforded due process.” Id. at 577. A jury does

so by assessing the proof at trial and determining whether the State has met its burden of

proving each and every element of the charged offenses beyond a reasonable doubt. Id. at

577-78.

24

To ensure that the jury can carry out its function of protecting a defendant’s due

process rights when considering whether the State has proven each and every element of a

kidnapping charge that arises out of the same conduct against the same victim of an

accompanying felony, the White court delineated the following jury instruction:

To establish whether the defendant’s removal or confinement of the

victim constituted a substantial interference with his or her liberty, the State

must prove that the removal or confinement was to a greater degree than that

necessary to commit the offense of [insert offense], which is the other offense

charged in this case. In making this determination, you may consider all the

relevant facts and circumstances of the case, including, but not limited to, the

following factors:

• the nature and duration of the victim’s removal or confinement by the

defendant;

• whether the removal or confinement occurred during the commission

of the separate offense;

• whether the interference with the victim’s liberty was inherent in the

nature of the separate offense;

• whether the removal or confinement prevented the victim from

summoning assistance, although the defendant need not have succeeded

in preventing the victim from doing so;

• whether the removal or confinement reduced the defendant’s risk of

detection, although the defendant need not have succeeded in this

objective; and

• whether the removal or confinement created a significant danger or

increased the victim’s risk of harm independent of that posed by the

separate offense.

Id. at 580-81 (footnote omitted) (emphases added). This instruction appears to have been

drafted with the assumption that the defendant is being tried for dual offenses against a single

victim. Certainly, that was the factual scenario before the court in the case.

25

Logic dictates that, if the court intended the instruction to be required in cases

involving circumstances similar to the instant case, the court would have phrased the

instruction as “the victim of the underlying felony.” The court obviously chose not to do so.

We also note that the White court relied on the Connecticut Supreme Court decision,

State v. Salamon, 949 A.2d 1092 (Conn. 2008). See White, 362 S.W.3d at 579. Salamon

involved offenses against a single victim. See Salamon, 949 A.2d at 1101-02. Indeed, the

White court noted that the Salamon court “clarified that the jury was to be instructed that ‘if

it finds that the defendant’s restraint of the victim was merely incidental to the defendant’s

commission of another crime against the victim, that is, assault, then it must find the

defendant not guilty of the crime of kidnapping.’” White, 362 S.W.3d at 579 n.15 (quoting

Salamon, 949 A.2d at 1122) (emphases added).

The core issue of Anthony, Dixon, and White was whether the defendant’s actions in

moving and/or detaining his victim(s) was no more than was necessary to commit the robbery

of the business establishment. See Anthony, 817 S.W.2d at 306 (holding that one method

of resolving whether the confinement, movement, or detention required for a kidnapping

offense was essentially incidental to the accompanying felony was to determine whether the

defendant’s conduct increased the victim’s risk of harm beyond that necessarily present in

the accompanying felony); Dixon, 957 S.W.2d at 535 (recognizing that “any restraint in

addition to that which is necessary to consummate [the accompanying felony] may support

a separate conviction for kidnapping”) (emphasis added); White, 362 S.W.3d at 576-77 (“In

our view, the kidnapping statutes, ‘construed according to the fair import of their terms,’

Tenn. Code Ann. § 39-11-104, and coupled with their derivation from the Model Penal Code,

evince a legislative intent to punish as kidnapping only those instances in which the removal

or confinement has criminal significance above and beyond that necessary to consummate

some underlying offense, such as robbery or rape.”) (emphasis added). See also Salamon,

949 A.2d at 1120 (recognizing that “the guiding principle is whether the [confinement or

movement] was so much the part of another substantive crime that the substantive crime

could not have been committed without such acts”) (internal quotation marks omitted)

(citation omitted). The underlying concerns were that a perpetrator, by necessity, must detain

his robbery victim long enough to commit the taking of property from the victim 6 and that

principles of due process prohibit the imposition of a separate kidnapping conviction when

the detention is no more than that required to commit the robbery.7

6

Robbery is defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006).

7

The Anthony court relied on principles of due process after concluding that a double jeopardy

(continued...)

26

This case presents a significantly different situation than the situation which triggered

the underlying concerns the court articulated in Anthony. In this case, the Defendant was not

convicted of both aggravated robbery and especially aggravated kidnapping as to any single

victim. Rather, contrary to both Anthony and White, the State sought and obtained only one

conviction as to each victim: the aggravated robbery as to the manager and the especially

aggravated kidnapping as to each of the employees moved to, and detained in, the

hallway/storage area of the restaurant. While we recognize that our supreme court has

determined that it is unfair to convict a defendant of two crimes against a single victim when

he, in fact, arguably has committed only a single crime that, by necessity, includes an element

of a different crime, that same concern eludes us in the face of multiple victims for which a

defendant is charged with a single offense. That is, we acknowledge that a perpetrator, by

some means or other, must detain his robbery victim long enough to take some property from

her. However, there is no corresponding necessity for the perpetrator to immobilize innocent

bystanders. Certainly, immobilizing such persons may facilitate the perpetrator’s

commission of his intended crime against his intended robbery victim, but we do not agree

that principles of due process prevent the perpetrator from being prosecuted for the separate

crimes he may commit against bystanders in order to facilitate his primary crime. Indeed,

we fail to see how a crime against one person can be merely “incidental” to a crime against

another person.8

Thus, we are persuaded that the robbery of a business establishment in which multiple

persons are present does not expand a perpetrator’s due process protections such that he is

free to move and/or detain multiple persons in order to commit a single robbery without

facing kidnapping convictions, at least as to those victims against whom he cannot be

charged with robbery.9

We recognize, of course, that our conclusion, in some respects, is contrary to our

supreme court’s holdings in Anthony. However, the issue we address today was not

presented to the Anthony court. Moreover, our current supreme court wisely has overruled

7

(...continued)

analysis was not adequate to resolve the issue. See Anthony, 817 S.W.2d at 306.

8

This is particularly the case when the “incidental” crime consists of the terrifying experience of

being detained in a separate location at gunpoint.

9

In State v. Franklin, this Court determined that “the proper unit of prosecution for aggravated

robbery in Tennessee is the number of thefts rather than the number of victims.” 130 S.W.3d 789, 798

(Tenn. Crim. App. 2003). Accordingly, the Franklin court held that, when the evidence establishes only a

single taking of property even though more than one person was present, only one conviction of aggravated

robbery may be sustained. Id.

27

Anthony, and we no longer are bound by its expansive application of due process which has

been utilized to defeat kidnapping convictions of perpetrators who commit offenses against

separate persons to facilitate the robbery of an entirely different victim.

As the logical correlate of our conclusion about the limits of the Defendant’s due

process protections, we hold that the Defendant in this case was not entitled to the White

instruction.10 We read White as requiring the expanded kidnapping instruction only when

the jury is required to determine whether the defendant committed dual offenses of

kidnapping and an accompanying crime for which some measure of detention was necessary

against the same victim.11 In the instant case, the jury was not asked to make this

determination. Because the State did not seek dual convictions as to any single victim, the

trial court did not err in failing to include the White instruction12 in its charge to the jury.

We acknowledge that panels of this Court have reached differing conclusions on this

issue. For instance, in State v. Richard Lacardo Elliott, No. M2001-01990-CCA-R3-CD,

2002 WL 31528538, at *1 (Tenn. Crim. App. Nov. 15, 2002), perm. app. denied (Tenn. Feb.

24, 2003), a panel of this Court, even prior to White, considered the defendant’s convictions

of aggravated robbery and aggravated kidnapping as to separate victims arising out of the

defendant’s conduct in a liquor store. Initially, the defendant began a transaction with the

clerk. When a customer walked in, the defendant produced a gun and ordered the customer

to the floor at gunpoint. The defendant returned his attention to the clerk and ordered the

clerk to give him money. After the clerk complied, the defendant ordered both persons to

a storage area in the rear of the store and “warned them not to move from that location for

five or ten minutes.” Id. The defendant was convicted of the aggravated kidnapping of the

customer and of the aggravated robbery of the clerk. The panel rebuffed the defendant’s

Anthony challenge in what appears to be the first case that specifically addressed the precise

issue before this Court in the instant case.

10

The Defendant’s trial was held in November 2011, before the White decision was filed. Cases in

the appellate “pipeline” at the time White was released may, nevertheless, be remanded for retrial with a

White instruction if the reviewing court determines that the pre-White jury instruction was not harmless

beyond a reasonable doubt. See State v. Cecil, 409 S.W.3d 599, 608, 610 (Tenn. 2013).

11

Rape, for instance, necessarily involves some detention of the victim by the defendant. See State

v. Michael Eugene Duff, No. 03C01-9501-CR-00008, 1996 WL 49250, at *5 (Tenn. Crim. App. Feb. 8,

1996) (recognizing that “confinement and detention are necessarily part of rape”), perm. app. denied (Tenn.

July 8, 1996).

12

As suggested by the White court, the Tennessee Judicial Conference Committee on Pattern

Criminal Jury Instructions adopted a permanent pattern instruction based on White. See T.P.I. - Crim. 8.03

(17th ed. 2013). The pattern jury instruction is basically identical to the instruction set forth in White.

28

The Elliott court opined as follows:

We believe that the kidnapping of [the customer] . . . had nothing to do

with the robbery of [the clerk]. . . . Defendant did not rob the victim of the

aggravated kidnapping, [the customer], nor was he charged with that offense.

Rather, he was charged with the aggravated robbery of [the clerk] and the

aggravated kidnapping of [the customer]. As the supreme court stated in

Anthony, “[t]he real issue involves the propriety of a kidnapping conviction

where detention of the victim is merely incidental to the commission of

another felony, such as robbery or rape.” 817 S.W.2d at 300. In this case, the

question is whether the detention of [the customer] was merely incidental to

the aggravated robbery of [the clerk].

....

Here, rather than leaving the store, Defendant ordered [the customer]

at gunpoint to a storage area in the back of the store after the aggravated

robbery of [the clerk] was complete. Therefore, the aggravated kidnapping of

[the customer] was not incidental to the aggravated robbery of [the clerk]. We

believe, however, that when the robbery victim and the kidnapping victim are

two different persons, the issue is better characterized as a question of whether

sufficient evidence exists to sustain a conviction for aggravated kidnapping.

Id. at *3-4 (emphasis added). The panel concluded that the evidence was sufficient to

support the defendant’s conviction of the aggravated kidnapping of the customer. Id. at *4.

See also State v. Gregory Mathis, No. M2011-01096-CCA-R3-CD, 2013 WL 4774130, at

*9 (Tenn. Crim. App. Sept. 5, 2013) (rejecting due process challenge to especially aggravated

kidnapping conviction because victim was not a victim of the accompanying aggravated

robbery of boyfriend, holding that “the especially aggravated kidnapping conviction . . . was

a separate and distinct offense from the aggravated robbery”).

In contrast, a majority of a different panel in State v. Josh L. Bowman, No. E2012-

00923-CCA-R3-CD, 2013 WL 4680402 (Tenn. Crim. App. Aug. 29, 2013), disagreed with

the Elliott case. Id. at *14-15. In Bowman, the panel considered a home invasion case in

which the defendant and his cohort accosted a couple in their home and shot and killed the

husband. The men then made off with the couple’s safe. During the episode, one of the men

held a gun to the wife’s head and ordered her to sit down. The defendant was convicted of

the especially aggravated kidnapping of the wife and the especially aggravated robbery of

the husband, as well as other convictions not relevant to the issue before us. The defendant

argued that he was entitled to a new trial because the jury was not given the White

29

instruction. The State argued that White did not apply because the charges for especially

aggravated kidnapping and especially aggravated robbery involved different victims. Id. at

*14. The majority of the panel rejected the State’s argument, predicated on Elliot, noting that

“[o]ur supreme court never said in the Anthony/Dixon/White line of cases that the fact that

the victim of the kidnapping was different than the named victim of the accompanying felony

eliminated the need for due process analysis.” Id. at *15.

A dissenting opinion filed in Bowman reasoned as follows:

The kidnapping offenses found in chapter 13 of Title 39, Part 3 of

Tennessee Code Annotated and the robbery offenses found in the same chapter

and title, but in Part 4 are both classified by our legislature as offenses against

the person of another. The two distinct offenses of especially aggravated

kidnapping of [the wife] and the especially aggravated robbery of [the

husband] are not “accompanying” felonies to each other, even though they did

occur at virtually the same time and in the same house. No robbery of [the

wife] accompanied the especially aggravated kidnapping of [the wife]. No

kidnapping offense of [the husband] accompanied the especially aggravated

robbery of [the husband]. As there was no “accompanying felony” to the

especially aggravated kidnapping charge, there was no need for the additional

jury instruction set forth in White.

Id. at *17. (Woodall, J., dissenting).

The majority opinion in Bowman also relied upon this Court’s opinion in State

v.Michael L. Powell, No. E2011-00155-CCA-R3-CD, 2012 WL 1655279 (Tenn. Crim. App.

May 10, 2012). We respectfully disagree with the Bowman court’s analysis of Powell.

Powell involved a home invasion in which the two defendants and a third man accosted three

people. The defendants were charged with aggravated robbery as to each of the three people

and with especially aggravated kidnapping as to two of the people. The jury convicted the

defendants as charged, and the defendants raised an Anthony challenge on direct appeal. In

the meantime, our supreme court issued its decision in White. The Powell court framed the

issue as follows:

In the instant case, the proof in support of the Defendants’ especially

aggravated kidnapping convictions consists of [victim 1’s] testimony that, after

[the defendant] Powell and the third man (Sean) took property from [victim 1

and victim 2] in the immediate vicinity of [victim 3’s] bedroom, Powell,

accompanied by Sean, forced [victim 1 and victim 2] into the kitchen at

gunpoint, made them lie down, and ordered them to remain there. The proof

30

also established, however, that [victim 1] had tried to stop the robbery of

[victim 3] and that [the defendant] Horne remained with [victim 3] while

Powell and Sean forced [victim 1 and victim 2] into another room. Therefore,

the proof is susceptible of at least two interpretations: (1) that Powell and Sean

removed [victim 1 and victim 2] from the scene of the robberies as discrete

criminal activity after the robberies had been completed, or (2) that Powell and

Sean were separating [victim 1 and victim 2] from [victim 3] so that Horne

could proceed with the robbery of [victim 3] without further interference.

Accordingly, the determination of whether the removal or confinement of

[victim 1 and/or victim 2] constituted a substantial interference of either

victim’s liberty that was to a greater degree than necessary to commit the

aggravated robbery of [victim 3] was a question of fact for the jury to resolve.

Id. at *9. Accordingly, the unanimous Powell panel remanded the matter for a new trial on

the kidnapping charges requiring inclusion of the White instruction. Id.

This case presents a different scenario. The Defendant was not charged with dual

crimes against any of the victims. Indeed, the Defendant was charged with and convicted of

committing only a single robbery against a single victim. Likewise, the Defendant’s

kidnapping convictions arose out of the moving and detaining of other persons, from whom

the Defendant took nothing. The moving and detention of these other persons were not

necessary to the Defendant’s commission of the robbery of the manager.

For these reasons, we hold that the Defendant’s due process rights were not violated

by his convictions and that he was not entitled to the White instruction. Accordingly, the

Defendant is not entitled to relief on either of these bases.

Double Jeopardy

Other than referring to two Tennessee appellate decisions from the 1970s reflecting

the authors’ concerns with the proliferation of penal statutes, the Defendant makes no

argument, and makes no references to the record, in support of his allegation that his

convictions for especially aggravated kidnapping and aggravated robbery offend the federal

and state constitutional prohibitions against double jeopardy. Accordingly, this issue is

waived. See Tenn. Ct. Crim. App. R. 10(b).13

13

Indeed, if we were to address this issue on the merits, we note that federal courts expressly have

rejected Fifth Amendment double jeopardy attacks on dual convictions for kidnapping and an accompanying

felony. See, e.g. Spence v. Sheets, 675 F.Supp. 792, 824 (S.D. Ohio 2009) (rejecting Fifth Amendment

(continued...)

31

Jury Instruction

In this case, the Defendant requested, in writing, that the trial court instruct the jury

as follows:

In order for the jury to find the Defendant guilty of Especially

Aggravated Kidnapping, [Aggravated Kidnapping, Kidnapping or attempt to

commit any of the kidnapping offenses], the prosecution must prove that the

detention or confinement of the victims was not incidental to the underlying

felony of Aggravated Robbery, [Robbery or any Attempt to Commit Robbery].

The prosecution must prove that the confinement or movement was beyond

that necessary to consummate the crimes of Aggravated Robbery, [Robbery or

Attempt to Commit Robbery].

If the prosecution has proved beyond a reasonable doubt that the

detention or confinement of the victims was not incidental to the underlying

felony offense of Aggravated Robbery, [Robbery or Attempt to Commit

Robbery], then you must find that the prosecution has proved beyond a

reasonable doubt one of that [sic] the detention or confinement:

(1) Prevented the victim from summoning help;

(2) Lessened the Defendant’s risk of detection; or

(3) Created a significant danger or increased the victim’s risk of harm.

13

(...continued)

double jeopardy challenge to dual convictions of aggravated robbery and aggravated kidnapping imposed

in Ohio state court); Bias v. Ieyoub, 36 F.3d 479, 480-81 (5th Cir. 1994) (rejecting Fifth Amendment double

jeopardy challenge to dual convictions for aggravated rape and aggravated kidnapping imposed in Louisiana

state court). Moreover, as Anthony made clear, the Tennessee Constitution’s double jeopardy clause does

not provide an avenue of relief. Anthony, 817 S.W.2d at 306, overruled on other grounds by White, 362

S.W.3d at 578. Thus, only because our supreme court determined in Anthony that the Tennessee

Constitution provided broader due process protections than were afforded by double jeopardy principles do

we need to address the viability of the Defendant’s convictions for especially aggravated kidnapping.

Apparently, in White and Cecil, our supreme court did not see fit to simplify the analysis under our state

constitution to address these issues solely on the basis of double jeopardy.

32

The trial court denied the Defendant’s request and charged the jury with the standard jury

instruction for especially aggravated kidnapping. The Defendant contends that the trial

court’s ruling was reversible error.14

We disagree. The essence of the Defendant’s argument is that he was urging the trial

court to utilize a White-type jury instruction even before the decision in White had been

handed down. As set forth above, however, we have determined that no White instruction

was necessary in this case. Accordingly, the trial court committed no error in denying the

Defendant’s request. The Defendant is entitled to no relief on this basis.

Sufficiency of the Evidence

The Defendant contends that the evidence was not sufficient to support his

convictions of especially aggravated kidnapping. Our standard of review regarding

sufficiency of the evidence is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

also Tenn. R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of

innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d

185, 191 (Tenn. 1992). Consequently, the defendant has the burden on appeal of

demonstrating why the evidence was insufficient to support the jury’s verdict. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does not weigh the evidence

anew; rather, “a jury verdict, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts” in the testimony and all reasonably drawn

inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the

State is entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which may be drawn therefrom.” Id. (citation omitted). This standard

of review applies to guilty verdicts based upon direct or circumstantial evidence. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275

(Tenn. 2009)). In Dorantes, our Supreme Court adopted the United States Supreme Court

standard that “direct and circumstantial evidence should be treated the same when weighing

the sufficiency of such evidence.” Id. at 381. Accordingly, the evidence need not exclude

every other reasonable hypothesis except that of the defendant’s guilt, provided the

defendant’s guilt is established beyond a reasonable doubt. Id.

Especially aggravated kidnapping is defined as “false imprisonment . . .

[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead

the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-

14

We recognize that the proposed special instruction is substantially similar to the White instruction.

33

305(a)(1) (2006). “A person commits the offense of false imprisonment who knowingly

removes or confines another unlawfully so as to interfere substantially with the other’s

liberty.” Id. § 39-13-302(a) (2006). Additionally, “[a] person is criminally responsible for

an offense committed by the conduct of another, if . . . [a]cting with intent to promote or

assist the commission of the offense, or to benefit in the proceeds or results of the offense,

the person solicits, directs, aids, or attempts to aid another person to commit the offense.”

Id. § 39-11-402(2) (2006).

Taken in the light most favorable to the State, the proof in this case demonstrated that

the Defendant and the codefendant walked into the back door of the Shoney’s when it was

opened from the inside by an employee. Brandishing handguns, the two men rounded up

four of the restaurant’s employees and ordered them into a back hallway/storage area. While

the codefendant stood guard over the confined employees, the Defendant accosted the

manager at gunpoint. The Defendant took the manager into the area with the cash register,

and the manager emptied the money into a plastic bag. The Defendant then took the manager

to the area where the other employees were being held. Someone said, “bow down,” and all

of the employees got down on the floor. The Defendant and the codefendant then left. The

four named kidnapping victims were confined for a total of about eight minutes.

This proof established that the Defendant and the codefendant knowingly and

unlawfully confined the Shoney’s employees, Perez, Ruiz, Moreno, and Teresa, so as to

interfere substantially with their liberty. Additionally, the Defendant and the codefendant

accomplished these actions with handguns. The evidence also established that the two men

were acting as a team, such that each was criminally responsible for the criminal actions of

the other. See Tenn. Code Ann. § 39-11-402(2) (2006). Accordingly, we hold that the proof

was sufficient to support the Defendant’s four convictions of especially aggravated

kidnapping. The Defendant is entitled to no relief on this basis.

Jury Instruction on Criminal Responsibility

In addition to charging the jury that “[t]he defendant is criminally responsible for an

offense committed by the conduct of another if, acting with the intent to promote or assist

the commission of the offense, or to benefit in the proceeds or results of the offense, the

defendant solicit(s), direct(s), aid(s), or attempt(s) to aid another person to commit the

offense,” the trial court instructed the jury as follows:

A defendant who is criminally responsible for an offense may be found

guilty not only of that offense, but also for any other offense or offenses

committed by another, if you find beyond a reasonable doubt that the other

offense or offenses committed were natural and probable consequences of the

34

original offense for which the defendant is found criminally responsible, and

that the elements of the other offense or offenses that accompanied the original

offense have been proven beyond a reasonable doubt.

Before you find the defendant guilty of being criminally responsible for

said offense(s) committed by the conduct of another, you must find that all the

essential elements of said offense(s) have been proven by the state beyond a

reasonable doubt.

This instruction was identical to the instruction found in the Tennessee Criminal Pattern Jury

Instructions. See T.P.I. - 3.01 (15th ed. 2011). This Court previously has described pattern

instruction 3.01 as “a correct statement of the law.” State v. Mario Green, No. W2006-

01383-CCA-R3-CD, 2008 WL 2331020, at *7 (Tenn. Crim. App. June 5, 2008).

The Defendant argues that the trial court’s instructions violated his constitutional right

to a unanimous jury verdict because these instructions permitted some of the jurors to

conclude that he was “guilty of kidnapping because it is a natural and probable consequence

of robbery without consideration of criminal responsibility for the co-defendant’s actions,”

while other jurors may have concluded that he was guilty of kidnapping “under the theory

of criminal responsibility for the co-defendant’s conduct of rounding up and holding the

Shoney employees,” while yet other jurors may have concluded that he was guilty of

kidnapping through a “combination of both scenarios.”

The Defendant has cited no authority for the proposition that a criminal responsibility

instruction combined with a natural and probable consequences instruction threatens a

defendant’s right to a unanimous verdict. We think this issue more properly is framed as

whether the trial court erred in providing the jury with alternative theories as to how the

Defendant committed each individually charged crime. We hold that it did not.

Concerns with jury unanimity generally occur when, for instance, the defendant is

charged with a single criminal act but the victim testifies about three specific criminal acts.

The State, in that event, is required to elect which specific criminal act it wants the jury to

consider so as to ensure that the jury reaches a unanimous verdict as to that specific act.

Otherwise, there is a danger that some of the jurors would be voting to convict on the first

specific act, while others would be voting to convict on the second specific act, while yet

others would be voting to convict on the third specific act. Such a “patchwork verdict” runs

afoul of Tennessee’s constitutional requirement of a unanimous jury verdict as to each crime

charged. See generally State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993).

35

In this case, the Defendant was charged with four counts of especially aggravated

kidnapping, each involving a separate victim. There was proof of only a single especially

aggravated kidnapping committed against each victim. That the proof may have included

alternative theories as to how the Defendant committed each offense did not threaten the

Defendant’s right to a unanimous verdict as to each count. See State v. James Clayton

Young, Jr., No. 01C01-9605-CC-00208, 1998 WL 258466, at *5 n.4 (Tenn. Crim. App. May

22, 1998) (“Generally, alternative theories, mental states, modes of committing the crime,

or means by which the crime was committed may be submitted to the jury without the

necessity of precautions to assure jury unanimity.”) (citations omitted); see also State v.

Lemacks, 996 S.W.2d 166, 170-71 (Tenn. 1999) (holding jury unanimity not at risk where

jury was instructed that it could find defendant guilty of DUI either directly or via criminal

responsibility for the actions of another). Accordingly, the Defendant is entitled to no relief

on this issue.

Cumulative Error

In his penultimate issue, the Defendant contends that he is entitled to a new trial on

the basis of cumulative error. As set forth above, however, we have determined that the trial

court committed no errors in conjunction with the issues raised by the Defendant.

Accordingly, the Defendant is entitled to no relief on this basis. See Nichols v. State, 90

S.W.3d 576, 607 (Tenn. 2002).

Sentencing

Finally, the Defendant contends that his sentence is excessive. The State disagrees.

Prior to imposing sentence, a trial court is required to consider the following:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in [Tennessee Code Annotated sections ] 40-35-

113 and 40-35-114;

36

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006).

The referenced “principles of sentencing” include the following: “the imposition of

a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging

effective rehabilitation of those defendants, where reasonably feasible, by promoting the use

of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),

(3)(C) (2006). “The sentence imposed should be the least severe measure necessary to

achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant should be considered in

determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),

(5) (2006).

Our Sentencing Act also mandates as follows:

In imposing a specific sentence within the range of punishment, the court shall

consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2006).

Additionally, a sentence including confinement should be based on the following

considerations:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

37

(B) Confinement is necessary to avoid depreciating the seriousness of

the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

When the record establishes that the trial court imposed a sentence within the

appropriate range that reflects a “proper application of the purposes and principles of our

Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,

707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor

does not remove the presumption of reasonableness from its sentencing decision.” Id. at

709. This Court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id. at 709-10. Moreover, under those

circumstances, we may not disturb the sentence even if we had preferred a different result.

See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has

the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n

Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

At the sentencing hearing in this case, Joshua Dwayne Lusty testified that he grew up

with the Defendant and considered him one of his best friends. He described the Defendant

as “a kindhearted person.” The Defendant “always helped [him] out when [he] needed

things.” Around the time that the Defendant committed the instant offenses, he noted the

Defendant’s change in attitude, describing the Defendant as “more withdrawn, more in a

depressed nature” than ususal. He had never known the Defendant to be violent.

Jessica Teats, the Defendant’s younger sister, described the Defendant as always being

helpful at home. She never knew him to be violent. She testified that the Defendant was

“always caring, willing to help others.”

Jabir Al Bodruzzaman, the Defendant’s fiancé’s brother, testified that he had known

the Defendant about six years. Asked about any changes he noticed in the Defendant after

he was released on parole from an earlier incarceration, Bodruzzaman stated that he saw the

Defendant “get really serious with school” and “try to pursue his career.” He also noticed

that the Defendant became “highly stressed out” by his illness. He added that he saw

38

“something really good” in the Defendant and that the Defendant “has done nothing but try

to be helpful to everybody [he’d] seen around him.”

Also admitted into evidence was the Defendant’s presentence report and certified

copies of the Defendant’s prior convictions of felony possession of a weapon, pleaded to on

April 12, 2001; possession with intent to sell over 26 grams of cocaine, pleaded to on April

12, 2001; misdemeanor evading arrest, pleaded to on April 12, 2001; and possession with

intent to sell over .5 grams of cocaine, pleaded to on December 2, 1999. The certified copy

of the amended judgment order entered on this last conviction provides in the “Special

Conditions” section that the Defendant “concede[d] probation violation” on September 6,

2000.

After taking this proof under advisement, the trial court entered a Sentencing Order.

The trial court sentenced the Defendant as a Range II offender, a classification the Defendant

does not contest. The court then applied as enhancement factors the Defendant’s previous

criminal history in addition to that necessary to establish his range, his probation violation,

and that the Defendant was on parole at the time he committed the instant offenses.15 See

Tenn. Code Ann. § 40-35-114(1), (8), (13)(B) (Supp. 2009). The court placed “great weight”

on the first and last of these three enhancement factors. The court specifically rejected the

Defendant’s request that his sentence be mitigated on the basis that he was “suffering from

a mental or physical condition that significantly reduced [his] culpability for the offense[s],”

id. § 40-35-113(8) (2006), finding that “although [the Defendant] may suffer from a medical

condition, there was no evidence that any mental health problems prevented him from

understanding the acts he committed or excuse or justify his actions.” The trial court also

rejected the Defendant’s suggestion that he “acted under duress.” Id. § 40-35-113(12). The

trial court gave “minimal weight” to the Defendant’s contention that “[s]ubstantial grounds

exist[ed] tending to excuse or justify [his] criminal conduct, though failing to establish a

defense” and to his submission of “[a]ny other factor consistent with the purposes of” the

Sentencing Act. Id. § 40-35-113(3), (13).

The trial court then imposed a mid-range sentence of seventeen years for the

aggravated robbery conviction16 and a mid-range sentence of thirty-three years for each of

15

The record indicates that the Defendant was sentenced to twelve years’ incarceration on his

conviction for possession with intent to sell over 26 grams of cocaine. It is apparent, therefore, that the

Defendant was on parole from this sentence at the time he committed the instant offenses in May 2009.

16

The Range II sentence for aggravated robbery, a Class B felony, is twelve to twenty years. Tenn.

Code Ann. § 40-35-112(b)(2) (2006).

39

the four especially aggravated kidnapping convictions.17 The trial court then ordered the

sentences for the kidnapping convictions to run concurrently with each other but

consecutively to the aggravated robbery sentence, for an effective term of fifty years in the

TDOC. The trial court based its imposition of partial consecutive service upon finding the

Defendant to be “an offender whose record of criminal activity is extensive” and that he “is

a dangerous offender whose behavior indicates little or no regard for human life, and no

hesitation about committing a crime in which the risk to human life is high.” Tenn. Code

Ann. § 40-35-115(b)(2), (4) (2006). The court also found as follows:

The Court finds this factor [for dangerous offender] applies as an aggregate

term is necessary to appreciate the seriousness of this offense and is necessary

to protect the public from further serious criminal conduct by this defendant.

The Court finds consecutive sentencing is reasonably related to the severity of

this offense, an offense that involved weapons and multiple victims who were

put in fear of their lives. The defendant has multiple prior convictions and was

on parole at the time of the offense. Based upon these prior convictions, the

Court finds the defendant’s criminal record to be extensive.

In his brief, the Defendant argues simply that the trial court “improperly weighed the

applied mitigating factors,” “applied an inappropriate enhancement factor,” and that his

sentence is “excessive.”

We disagree. First, the record supports the trial court’s application of the three

enhancement factors set forth above. Moreover, we do not reweigh the various enhancement

and mitigating factors applied by the trial court. See Carter, 254 S.W.3d at 345-46.

Finally, the record supports the trial court’s determination that partial consecutive

service is appropriate. Our sentencing statutes provide that a trial court may order sentences

to be served consecutively on the basis of any of seven statutory criteria. See Tenn. Code

Ann. § 40-35-115(b). As our supreme court has recognized, the satisfaction of only one of

these criteria will support consecutive service. See State v. Dickson, 413 S.W.3d 735, __,

2013 WL 5530670, at *11 (Tenn. 2013) (citing State v. Mickens, 123 S.W.3d 355, 394

(Tenn. Crim. App. 2003)). In this case, the trial court determined that the preponderance of

17

The Range II sentence for especially aggravated kidnapping, a Class A felony, is twenty-five to

forty years. Tenn. Code Ann. § 40-35-112(b)(1) (2006). Sentences for especially aggravated kidnapping

must be served at 100%. Id. § 40-35-501(i)(1), (i)(2)(C) (Supp. 2009).

40

the evidence18 established two criteria: that the Defendant was “an offender whose record

of criminal activity is extensive” and that he was “a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a crime in

which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(2), (4). We agree

with the trial court that the Defendant’s record of criminal activity is extensive. In addition

to the five very serious felonies at issue in this case,19 the Defendant has previous convictions

for three felonies, including a weapons offense, and one misdemeanor. This history is

sufficient to support the imposition of partial consecutive service as ordered in this case.

Accordingly, we hold that the Defendant is entitled to no relief on his sentence.

Conclusion

For the reasons set forth above, we affirm the trial court’s judgments of conviction

and sentences.

_________________________________

JEFFREY S. BIVINS, JUDGE

18

See Tenn. Code Ann. § 40-35-115(b).

19

This Court has recognized that “[c]urrent offenses may be used in determining criminal history

for the purposes of consecutive sentencing.” State v. Carolyn J. Nobles, No. M2006-00695-CCA-R3-CD,

2007 WL 677861, at *12 (Tenn. Crim. App. Mar. 7, 2007) (citing State v. Cummings, 868 S.W.2d 661, 667

(Tenn. Crim. App. 1992)).

41